Sunday, 17 March 2013

Some reflections on the James v Thompson libel trial

We've now had a couple of days to reflect on the judgement handed down in the case involving blogger Jacqui Thompson and the chief executive of Carmarthenshire County Council, Mark James.

Cneifiwr is not a lawyer and does not propose dissecting the findings of Mr Justice Tugendhat, but one thing that emerges from the judgement is how much emphasis was placed on the history of the planning dispute which pre-dated Jacqui's blog.

The narrative presented by Mr James's team was that this led to a campaign of personal revenge against the council and some of its senior officers, and the judge accepted this interpretation of Jacqui's motives. The rest of the case and the judge's findings then inevitably flowed from that interpretation.

A number of witnesses made themselves available to give testimony on Jacqui's behalf, but the judge ruled that most of their written evidence was inadmissible because it constituted opinion, and he said, he was not prepared to conduct an opinion poll. In the event only one witness for Jacqui gave vidence, and that revolved around the events which led to the publication of Mr James's letter to the madaxeman blog.

The problem with that was that the whole question of Jacqui's motives was a question of opinion and interpretation, and in the end only Mr James's opinion counted.

For all those of us who have had the pleasure of meeting Jacqui and getting to know her, the idea that Jacqui's blog was one prolonged exercise of revenge is false.

The judge noted in his verdict that Jacqui and her husband have only a very modest income, so his decision to award damages of £25,000 against her has to be seen as punitive. How justice or the public interest are served by ruining a hard working family and rewarding a senior local government official backed by public funds (in a way which remains legally highly questionable) is not clear.

For the press and the rest of us, the judgement is fraught with dangers. A key part of the judgement found that Jacqui Thompson was guilty of harassment through her blog. Where is the line to be drawn between harassment and legitimate comment and criticism of an arm of government?

The local press in Carmarthenshire knows from bitter experience that the council is extremely intolerant of criticism, and there was a timely wake-up call this week to the Llanelli Star and its sister papers:

Llanelli Star
‏@LlanelliStar

Llanelli Star trainee reporter @Chad_Welch ejected from council meeting and has notes seized. Full story here

The effect of the judgement will be to strengthen the chief executive's conviction that he is beyond reproach and beyond criticism. The rest of us had better watch out.

The last word goes to Lord Justice Cocklecarrot and his famous summing up of the Jeremy Thorpe case.

24 comments:

Well said, Cneifiwr. The point about the witnesses is crucial, as it demonstrates the perception of a lack of balance and, for me as an observer, a rising sense of injustice in the way the trial evolved. This is not necessarily all the fault of the court: the presentation of the case, in my view, should have been more 'robust' and pulled back the focus of attention from the early genesis of Jacqui's blog to the wider scope that it acquired, and the issues of very significant public interest, only some of which touched on Mr James's position as Chief Executive. The real purpose of this prosecution was clearly to silence criticism of a local authority, and this has been accomplished. Or has it? Let's see.

I know nothing about libel law or indeed libel trials, but....this particular case is the antithesis of a trial where one has committed either criminal damage or GBH, motivated by an injustice, but the background, together with reasons for committing such an offence is not deemed to be relevent at all and is not allowed to be presented in mitigation. Clearly this judgement on Jacqui's trial is all about the background and history, Mark James's opinion that her blog was vengeful, a campaign of harassment, and it would appear has been fully accepted by this Judge. This Judge's opinion and summing up of Jacqui Thompson is a description of someone I don't recognise at all. It does seem to me that this Judge has gone more with opinion than the actual libel itself. Establishment protecting it's own is all I have known in my fight for justice. I was hopeful for fairness to prevail in the High Court. It didn't.

I agree with Mrs Angry and Patricia B that Jacqui is very much not the person described by the judge, who wanted no other opinions in her defence but allowed Mark James' opinions to weigh so heavily against her.If the court had any idea of the way that these 'public servants' oppressed any opposition the verdict would surely have been the other way!

@ Patricia b: one is criminal and one is civil. That's why there's the different standard for motivation and past activities. In a civil case past conduct adds to the balance of probabilities, when in criminal every charge is taken in isolation.

As for the case, unfortunately I think it came down to the loop caused by the counterclaim. How could she sue MJ for liabel and rely on freedom of expression for her comments? Her lawyers really should have spotted the logic loop.

I heard that the Llanelli star reporter was sitting in on a private meeting, and he was only allowed in because he arrived with Simon thomas and they thought he was one of Simons staff!

It depends what the meeting was about... If Llanelli rural and town were talking off the record with the AM''s, possibly about legal action against the health board, then the press could have released sensitive information against the public interest of the people of Llanelli!

mr MaGowan says that the star received several phone calls inviting them... From who? Because none of the politicians have come to the aide of the star journalist. Just because the press say it... Doesn't make it true!

The history in the judgement is merely a statement of the facts leading up to the case.

Motive is of little relevance. The issues being decided are simply did libel take place and, if so, was there a defence?

Frankly I find it extremely difficult to imagine any court coming to a different conclusion.

I would recommend consideration of the reasons he court decided to go so far as to award aggravated damages. This case was not just lost, it lost heavily.

Ms Angry says in her comments above “The real purpose of this prosecution was clearly to silence criticism of a local authority”. She appears to have forgotten that this case was not brought by James, it was brought by Thompson.

The purpose of the case must surely have been to silence James’ attempt to defend himself against the false defamation.

This is not about planning decisions, nor about public videoing of council meetings other than to stand out as a stark demonstration of the foolishness of expecting to have your opinions heard by falsely defaming people who disagree with those opinions.

Reading the judgement it does seem to make sense to me however unpallatable that is.

JT has fought the good fight but I now really feel it is time for her to retire. If there was an appeal I would contibute but we must understand that she must be knackered and should bow out for her own good!

The only way this will improve is democratic challenge at the next election.

Incitatus - I should have said counter claim, of course, not prosecution. Sitting in the court, in fact, it often seemed like a prosecution. It is a very complex case, but I feel strongly that Jacqui's case was not fairly presented,and I believe that the hearing should have been before a jury.

the jusge didnt say that her blog was a campaogn for revenge, and he excluded her protest on the ban on filming from his critisisms. It was specific posts which he found were libel. He at one points says that the blog itself makes many political comments which he did read as opinion and comment, he separates them from the countersuit comments. In short... the blog is fine, and the protest against the filming ban is fine!

Diolch Cniefiwr.Thanks to the links you provided I was able to read the full judgement - and it took a bit of time! But I have to say that I thought the background, which was nearly all new to me, cast the blog in a less favourable light and made me question whether or not my previous support for her was warranted. I was quite shocked at some of the things I read and will be more circumspect when I read her blog in future.

Anon @ 12.26 All I can say is that the picture the judgement paints and the real Jacqui Thompson are very different things. And her blog has been one of the very few voices challenging the powers that be in County Hall. She derved better than this.

The Judge has not criticised Jacqui's blog per say, only three of her posts amongst hundreds. I wouldn't therefore be ready to be too judgemental on that issue.The other fact is that Jacqui's witnesses were disallowed, and clearly the conduct and culture that exists within this authority was also not permitted to be heard let alone judged upon. I too have read this judgement in detail and what comes across to me is a very one-sided affair.

Having read through the judgement I have to say that it seems the judge has no sense of humour and failed to understand the sarcastic tone of the postings.

In nearly 4 years of blogging Mark James could only find 5 postings to complain about. How the judge could consider 3 of them as anything as sarcastic comments about the way that Mark James and CCC operate is beyond me.

Blogs such as these have to contain humour and sarcasm or quite frankly they are not that interesting. From the contents of one the blog entries that the judge found against Jacqui it is clear that she has been careful not to libel Mark James by not displaying certain comments she received. She (and the rest of us) obviously thought that her comments were a good mix of fact and humour. I am sure a jury would have too.

I am sure a barrister as expensive and with all the resources as the one that WE just paid for Mark James to use would easily get the verdict overturned in an appeal.

I tried posting this same comment on the Oggy Bloggy Ogwr site but not sure if it has been approved, so I thought I'd post it again here:

Throughout this whole case, I followed it on twitter and thought to myself what sort of person Mark James must be to use council funds to fund his case.

I also had a clear idea in my mind that Jacqui was 100% on the right side, and that it was preposterous that this even got to court.

Then I heard the judgement. I was horrified. I needed to learn more about the case, so I checked the ruling on bailii and, I can't believe I'm saying this, but I think the judgment was correct.

Jacqui made some serious errors in the actions she took and the posts she made, none of which have been made clear in any media reporting of this case. She made allegations which she could not prove.

You know as well as I do that what goes on in Carms county hall is far from whiter than white, but (and it is very unfortunate) I honestly believe, having read the judgment, that Jacqui was careless in the way she went about her campaign.

It was a campaign. Whether it was a campaign of revenge or a campaign for freedom of speech is irrelevant - it was a campaign, and despite the clear benefit Jacqui's website gives to holding CCC to account, some serious errors were made, none of which were reported in the press before or since the trail, and that is perhaps the biggest injustice, that the case has mistakenly been referred to as the case over filming the meeting.

Read the judgment. It IS huge, of course, but the filming of public meetings is absolutely NOTHING to do with this harsh ruling. Absolutely nothing, save for the fact that Jacqui was found guilty of perverting the course of justice when she falsely accused an officer of assaulting her without foundation.

I can't say how much I'm on Jacqui's side, I really truly am, but I URGE EVERYBODY to read the judgment, it did change my whole perception of "daft arrest" and it might change yours.

I honestly don't agree that bloggers need to be more careful following this case. Bloggers should always be careful. If in doubt, don't publish. The mistakes made by Jacqui are simple ones, this case is in no way an earth shattering one for freedom of speech, in fact it is a pretty run of the mill case as far as libel goes, and the only element of precedent - and something the judge refused to delve into, was that it was funded by CCC.

Once again, anybody who has an interest in this, don't just disregard my comment, simply read the whole judgment, and understand each and every twist in the tale of this very long and sorry saga, with no winners at the end.

@anon 19 March 2013 12:10 - A judgement, by definition, is an opinion and an interpretation - in this case by the judge himself. Regarding the judge, I am very surprised that the leading libel judge in media matters appears to be out of touch with the blogging and twitter world (e.g. needing to have the term "#" explained). I am also very surprised that he stated there "could be no plausible explanation......other than revenge". So - little knowledge of online activities, and a failure to recognise that those dependent upon public services (in particular low income/working class) may be motivated by anger and frustration - suggests to me that here we have yet another example of a judge who is out of touch with our world.

Many of the above comments, particularly ideas about an appeal concern me,.

Humour and sarcasm are no defence, motive distinctions between revenge, anger and frustration are irrelevant. The fact that there were many other opportunities for defamation that were not taken up is an exceptionally unimpressive argument.

I find myself pondering what the original objective of bringing the case could have been. It appears to me that the most optimistic expectations were modest compared with the cost, trouble and risk involved.

whatever the merits or otherwise of this case the frightening consequences are that a council used and funded a proxy [Mark James] to take a libel action against a troublesome blogger. As a Council cannot be defamed it cannot sue for libel. The executive board decided to fund and promote MJ in the role of a proxy instrument to counter sue. Its rather similar to the actions of Russia in Syria. Now any council can do the same and all bloggers are under threat. All legal but is it fair?